Business and human rights litigation in Latin America: Lessons from practice
Strategic litigation has become a crucial tool to hold business accountable for human rights abuse. Companies around the world are being taken to court to face claims—whether civil, criminal, labour, administrative, constitutional or other legal actions—for abuses including violations of labour rights, environmental harm, lack of free, prior and informed consent, threats, harassment, and killings of human rights defenders, communities, and civil society organisations.
These legal actions represent, in many cases, the only avenue not only for corporate accountability, but also for access to justice and comprehensive reparation. However, those pursuing justice face constant obstacles and limitations, including extensive delays in judicial processes, high costs and judicial systems’ failure to apply national and international human rights standards.
Between 2018 and 2020, the Business & Human Rights Resource Centre (the Resource Centre) organised three workshops on two topics: the challenges and opportunities arising from experiences in litigation on business and human rights, and how to approach intimidation and attacks against human rights defenders.
The first Latin American regional workshop, held in Colombia, focused on protection and self-protection mechanisms for ethnic and peasant communities. The second regional workshop, held in Mexico, aimed to identify and strengthen defence strategies for land, territory and environmental defenders and communities. The final workshop, in Colombia, led to the publication of reflections on strategic litigation. These led to the creation of the Latin American Strategic Litigation on Business and Human Rights Network (the Network), currently coordinated by the Resource Centre.
The Network has focused on the exchange of experiences of business and human rights litigation as one of its main priorities. Since its creation, the network has promoted a central idea: that strategic litigation goes beyond judicial scenarios. For this reason, the network has fostered dialogue on communications, knowledge building, and access to experts on a range of topics. In addition, thinking about high-impact litigation in the field of business and human rights allows us to develop educational and capacity-building scenarios for communities and human rights defenders. As part of the Network activities, the Resource Centre has been building an internal repository of court decisions, with over 150 court judgements relating to business and human rights in the region.
Strategic litigation is a key tool for holding business accountable for abuse. This report draws upon cases identified in our lawsuit database and the direct experiences of Network members to form the basis of a shared resource on litigation against companies.
In December 2020, the Resource Centre launched a lawsuit database which—at the time of publication—has compiled details of 209 cases seeking to establish legal accountability for human rights abuses by business around the world. Fifty-one cases in the database relate to human rights abuses which took place in Latin America. Colombia and Brazil have seen the highest number of lawsuits filed, with 14 each. At least four cases have been recorded in Guatemala, Peru and Argentina, respectively.
Mining (18) and hydrocarbons (11)—mainly gas and coal—were the sectors linked to the highest numbers of cases in the database. Other sectors linked to cases include agriculture and livestock, as well as the automotive industry.
Thirty-one of these cases have used transnational litigation: plaintiffs have initiated lawsuits outside the country where the events occurred, filing in countries where companies are headquartered or where they carry out other business operations. This strategy reflects a better outlook for access to justice, considering the obstacles faced by those seeking to initiate legal action in the place where abuse took place (such as a lack of mechanisms to obtain reparations and lack of independence of the judicial system.) Fourteen cases were filed in the United States, six in Canada, and four in the United Kingdom. In countries such as Germany (three) and France (one), legal proceedings have also been initiated for abuses committed in Latin America. On the other hand, 19 cases have used national litigation to confront abuse, and at least one case was brought under the Inter-American Human Rights System. Cases involving businesses from China—mostly state-owned, with operations in Latin America—present a challenge, as China does not have mechanisms to file legal actions related to corporate abuse in this region.
While all the cases identified relate to multiple types of abuse, some of the most salient relate to access to water; the right to health and a healthy environment; land rights; the use of violence, intimidation, threats and murders against human rights defenders; lack of decent working conditions; and conditions of forced labour or modern slavery.
These findings are just a sample of the important work of organisations and communities in Latin America are doing to hold business accountable. The lawsuit database is constantly updated.
Strategic Litigation Network: Experiences from the field
Between March and April 2022, the Resource Centre carried out a survey of members of the Network on their experiences of business and human rights litigation in the region. The survey included questions about the type of litigation pursued, the jurisdiction in which the cases are located, the sectors linked to abuses, challenges and obstacles faced during proceedings, and lessons learned. We received 16 responses from organisations in Brazil, Colombia, Chile, Ecuador, Honduras, Guatemala and Mexico, and others working at the regional level.
Nine of the organisations surveyed said they have experience in litigation against businesses, and seven in litigation against states. Several organisations also mentioned their experience in other advocacy actions, such as communication campaigns and presentation of amicus curiae to support litigation.
Almost two-thirds of the organisations (10) reported experience in business and human rights litigation at the national level, making use of civil, constitutional, criminal and administrative actions. At least two organisations reported experience in labour litigation. We also found some organisations in the region have used international human rights protection mechanisms such as those provided by the Inter-American Human Rights System, and at least two organisations reported experience in transnational litigation.
Mining, agribusiness and energy are the sectors linked to the most lawsuits among the organisations surveyed. The prevalence of these sectors reveals a concerning pattern of abuse by sectors which are heavily dependent on natural resources. Some other sectors involved in court cases are oil, gas and coal, construction, and private security companies.
Unfortunately, the organisations and communities filing these cases reported various obstacles. Thirteen of the survey respondents reported threats and intimidation against victims and survivors of abuse, human rights defenders and communities as one of the main barriers to filing cases. This demonstrates a climate of hostility towards those who seek to hold businesses accountable. This alarming situation is reflected in the Resource Centre’s database of attacks against human rights defenders working on business-related issues.
Our research since 2015 has shown Latin America is one of the most dangerous regions in the world for human rights defenders raising concerns about business-related abuse. In 2021, judicial harassment, intimidation, threats and killings were the most frequently-recorded types of attack against defenders, with environmental defenders the most frequently targeted. Within this data, abusive strategic lawsuits against public participation (SLAPPs) stand out as a common form of judicial harassment, as explored in our 2022 report on SLAPPs in Latin America.
Additional obstacles reported by survey respondents included the high cost of judicial processes, for example costs associated with evidence collection or access to legal representation; a lack regulation of business and their potential human rights impacts; failure to apply human rights standards by legal officials; excessive delays in proceedings; an absence of mechanisms to implement rulings in favour of communities; and corruption of judicial systems.
Read experiences and contributions from members of the Strategic Litigation Network and lawyers involved in litigation for corporate accountability.
Miskito Divers vs. Honduras
The 2021 Inter-American Court ruling in favour of 42 members of the Miskito community who sued the State of Honduras marked a turning point for business and human rights in Latin America. CEJIL's Lucas M. Mantelli explains the process.
The Indigenous Binnizá community of Unión Hidalgo in southern Mexico has been fighting for territory and natural assets against the installation of wind farms since 2013. ProDESC explain the legal processes and complaint against EDF under French Duty of Vigilance law.
More perspectives on strategic litigation
Read our series of opinion pieces contributed by members of the Strategic Litigation Network
Access to redress mechanisms has been widely recognised in international and regional human rights standards and instruments. Principle 25 of the United Nations Guiding Principles on Business and Human Rights (UNGPs) establishes states’ obligation to ensure redress through judicial, administrative or legislative channels when human rights violations occur. These mechanisms must be made known by states, which must provide the necessary support to ensure access to these resources. Regarding judicial mechanisms, principle 26 of the UNGPs states that they should be effective in protecting rightsholders and, consequently, remove any legal, practical or any other obstacles to accessing them. States must ensure access to these mechanisms without delay and in an impartial manner, respecting due process and due diligence. This also means ensuring, preventing and addressing judicial corruption, so that it does not limit the delivery of justice, and guaranteeing the legitimate work of human rights defenders and their representatives.
The Office of the High Commissioner for Human Rights (OHCHR), in the framework of its Project on Accountability and Reparation, has recognised the many shortcomings and negative situations experienced by those seeking redress. In response, it has made practical recommendations to improve the effectiveness of redress mechanisms in the implementation of the UNGPs for access to remedy.
Moreover, the UN Working Group on Business and Human Rights (UNWG) has mentioned that access to reparation mechanisms includes the possibility of accessing effective reparation for harm. This includes access to restitution measures, compensation, satisfaction, guarantees of non-repetition and rehabilitation. Similarly, the Committee on Economic, Social and Cultural Rights, in its General Comment No. 24 of 2017, refers to the obligations of states to guarantee these rights in the context of business activities, and recognises that corporate accountability and access to reparation measures are crucial to guarantee economic, social and cultural rights. These standards have also been referenced by the Inter-American Commission on Human Rights (CIDH) in its report Inter-American Standards on Business and Human Rights, which recognises that each state’s judicial administration system is the first basis for defence and, specifically, protection of human rights in the context of economic and commercial activities carried out by businesses.
Strategic litigation toolbox
As part of our survey, members of the Network identified useful tools to address challenges and obstacles faced by those who file lawsuits: collection of data on corporate accountability lawsuits, with a view of legal arguments useful for the defence of victims; standards on business and human rights, as well as academic research providing conceptual and systematic analysis of successful and unsuccessful experiences in this area.
Some tools which may be useful for civil society organisations, legal advocacy teams, human rights defenders and communities are included below. This is not an exhaustive list of tools available. Moreover, the Resource Centre published a guide on business and human rights for communities and organisations which provides practical guidance on documenting abuse and mechanisms that can be activated; additionally, information on climate change litigation is available on our website. It is also important to highlight Konrad Adenauer Foundation Rule of Law Program for Latin America’s publication on Latin American Experiences on Reparation in the Field of Business and Human Rights.
Although there are several relevant databases on human rights and business litigation in Latin America, the following stand out:
Platform on climate litigation for Latin America and the Caribbean
Repository of good practices in the field of economic, social, cultural and environmental rights (Inter-American Institute of Human Rights)
Atlas of Environmental Justice
Environmental Law Alliance Worldwide (ELAW) Database (EIA Law Matrix)
EarthRights International database
Human rights and land navigator
From the Resource Centre
Human rights defenders database
Our database of attacks against human rights defenders who are targeted for raising concerns about business operations
Strategic lawsuits against public participation (SLAPPs) are used by business actors to stop people raising concerns about their practices. Search Search our database of cases which bear the hallmarks of SLAPPs.
Transition Minerals Tracker
Tracking the human rights policies and practices of businesses extracting six key minerals essential for the energy transition: cobalt, copper, lithium, manganese, nickel and zinc.
Search through 200+ lawsuits against companies seeking to hold business accountable for human rights abuses.
Reports from the Inter-American Commission on Human Rights
- Economic, social, cultural and environmental rights of persons of African descent, Inter-American Standards to prevent, combat and eradicate structural racial discrimination
All thematic reports of the Inter-American Commission are available here.
Decisions by the Inter-American Court of Human Rights
Various decisions of the Inter-American Court have been introducing standards related to the obligations of States in the framework of economic activities and the duty to regulate private business activities, some of which are highlighted below. It is important to mention that these decisions establish important standards that must be applied beyond the country, against those to whom the sentence is issued.
Miskito Divers (Lemoth Morris et al. vs. Honduras (2021)
Concerning human rights violations against members of the Miskito indigenous community resulting from the state’s lack of regulation, supervision, and surveillance of private business in Honduras' deep diving lobster fishing industry. A blog about the case is available here.
Indigenous community members of the Association Lhaka Honhat (Our Land) vs. Argentina (2020)
Relating to the violation of rights to community property, cultural identity, healthy environment, adequate food and water of 132 Indigenous communities inhabiting the Rivadavia Department in the Province of Salta, Argentina, as a result of ineffective state measures to stop activities on the part of different actors.
Employees of Santo Antônio De Jesús explosives factory et al. vs. Brazil (2020)
Relating to an explosion at a fireworks factory in the municipality of Santo Antônio de Jesús, Bahia state, Brazil, in which multiple factory workers were killed and injured. The Court analyses the lack of control on the part of state authorities regarding working conditions in the factory and control of hazardous activities.
Workers of Hacienda Brasil Verde vs. Brazil (2016)
Concerning the responsibility of the Brazilian State for failing to guarantee the protection of 85 workers subject to forms of modern slavery and human trafficking on a cattle ranch in northern Brazil.
Kichwa Indigenous People of Sarayaku vs. Ecuador (2012)
Concerning the responsibility of the Ecuadorian State for abuses of rights to consultation, Indigenous communal property and cultural identity following exploration activities by private oil companies in Indigenous territories without prior consultation.
Saramaka Village vs. Suriname (2007)
Concerning impacts on the health and rights of the Saramaka Indigenous people as a result of activities by foreign mining and logging companies. The court orders the state to make reparations and respect for the differentiated rights of this population.
Upcoming discussions in the Inter-American System
Currently, the Inter-American Commission presents three cases where business and human rights could be at the core of discussions:
- In October 2021, the IACHR presented the case of La Oroya vs. Peru to the Inter-American Court, in which impacts related to pollution caused by a metallurgical complex under the control of a public company will be analysed.
- In October 2020, the IACHR filed two cases with the Inter-American Court related to business activities. The first concerns the case Tagaeri and Taromenane vs. Ecuador on the impacts of oil activity in the territory of Indigenous communities in voluntary isolation. The second concerns the case of the U'wa Indigenous People vs. Colombia, related to the right to ancestral property and the impacts of different business activities, associated with oil, mining and tourism in five Colombian departments where this Indigenous group is settled.
Despite the obstacles faced by human rights defenders and organisations seeking to pursue justice in Latin America, judicial and legal actions represent a unique opportunity to hold companies accountable for human rights abuse, and for those affected to eventually have access to remedy. The Resource Centre will continue highlighting the crucial developments in strategic litigation on business and human rights in Latin America and sharing useful tools and resources to support organisations and communities to build strategies to fight corporate abuse.
Author: Lady Nancy Zuluaga Jaramillo
With the support of: Fabián Andrés León Peñuela
Acknowledgements: We are very grateful to members of the Strategic Litigation Network on Business and Human Rights and those individuals and organisations who share their insights and expertise for this research.