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7 Jul 2015

Amanda Romero, Business & Human Rights Resource Centre

Time to move from rhetoric to action on business & human rights in Latin America

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In Peru in May 2015, it was reported that five people died and 208 were injured as they protested against mining projects they feared would restrict their access to water, land, a healthy environment and food. Although international standards on business and human rights do exist, very few governments and companies have explicit policies on the matter, and even when they do, they are not put into practice or they do not effectively protect human rights. A solid policy on corporate legal accountability and human rights would, for instance, allow the Peruvian state to establish standards to adequately consult the population before granting environmental licenses to extractive industries.

Business & Human Rights Resource Centre recently approached 100 governments worldwide, ten of them from Latin America, on their steps to implement the UN Guiding Principles on Business and Human Rights. 44 governments responded, 6 of them Latin American. We also surveyed more than 180 private companies (10 from Latin America), receiving 94 responses (including 5 from Latin America).    

The responses provided by Argentina, Brazil, Chile, Colombia, El Salvador and Mexico (Brazil’s answer is analysed here) show there is much work to be done; even though the response rate of the region is the highest after Europe. Despite the recommendations of the UN working group on the necessity to develop National Action Plans (NAP), the issue highlights substantial differences between all six countries regarding approach, political will and comprehension.

Besides Brazil, all five governments recognised the importance of human rights in business operations. While the Chilean and Colombian governments held an expressly favourable position regarding the elaboration of a process leading to a NAP, we did not find such explicit mention by El Salvador, Argentina and Mexico. However, no government addressed the questions of prevention, mitigation or access to judicial remedies for people whose human rights have been abused by companies. El Salvador mentioned the creation of environmental courts and Mexico referred to extrajudicial mechanisms such as the OECD National Contact Point.

Among the factors mentioned as a barrier to the implementation of the Guiding Principles, El Salvador and Argentina indicated lack of funds for the supervision, application or prevention of abuses, as well as opposition from business. They also highlighted political limitations imposed by foreign governments or multilateral institutions. Chile did not explicitly mention barriers to implementation although it did acknowledge the necessity of strengthening institutional capacities. Finally, the Colombian government said its main limiting factor to action on business and human rights is “concern about discouraging foreign investment”.

This last argument is especially striking in one of the most unequal regions of the world. According to a recent report by UNECLAC, each country mentioned, registers more than a dozen free trade agreements giving preference to companies and private foreign investors. Apparently, incentives for foreign investment are increasing. Many local NGOs affirm that such preferences are granted to the detriment of people's rights, especially regarding the protection of the environment, social protest and labour rights in a region where investment does not necessarily mean social wellbeing; according to the World Bank, one out of every five Latin Americans lives in poverty. Besides, it is a somewhat misleading argument, as there are many multinational companies that prefer to invest in countries where the rules of the game are clear, where the rule of law is respected and where high international standards of human rights are upheld. Those investment environments provide companies with financial safety and allow them to fulfil their own codes of social and environmental conduct.

On access to remedy, it is disappointing that in Chile’s response it is acknowledged that abuses committed by companies constitute “complex cases” as they “may come from companies with capacity to generate intimidating conditions difficult to neutralize with the application of ordinary measures of protection.” Perhaps this affirmation confirms the trend in some Latin American countries, including some which did not respond to the survey, like Peru and Ecuador, of increasing criminalization of social protests opposing megaprojects, using punitive measures which include charges for “terrorism”, “rebellion”, “kidnapping” and others.

Although the responsibility to protect human rights rests with governments, the UN Guiding Principles state that the companies themselves have a responsibility to respect those rights. Our Company Action Platform got responses from 94 out the 180 companies regarding their action on human rights, 5 of them from Latin America.

Latin American companies hold differing positions, from denial of their responsibility in operations abroad, to promotion of high standards of inclusion of different aspects of human rights and due diligence in their operations worldwide. Some corporate politics are stated, for instance, on the response given by Cerrejón, a coal company which belongs to Anglo American, BHP Billiton & Glencore. Looking to state-owned oil companies, the response of Ecopetrol from Colombia shows the internal advances of the company to take a human rights policy. On the contrary, Pemex from Mexico and PDVSA from Venezuela, despite many attempts, did not respond to the survey, -  the response rate of state-owned companies was generally lower.

To have human rights policies does not mean that the general landscape is going to change automatically. Several serious obstacles to the respect of human rights still exist, and intentions of regional governments regarding NAPs are yet to become clear. Until now, no Latin American government has managed to provide an action plan with the adequate resources, personnel and contents to address the many problems related to the victims of their business operations.

However, at least some governments, like Chile, have begun to plan strategies for the production of their NAP, starting with a baseline assessment. This, then, is an opportunity to establish strong standards on the issue. Hopefully, while the discussions of the Intergovernmental Working Group for the Binding Treaty (promoted by Ecuador, Bolivia, Cuba, South Africa and Argentina) advance, the spirit of the UN Guiding Principles on business and human rights becomes a reality in the daily life for millions of Latin Americans affected by the actions of, either private or public, national or transnational companies. 


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