Latin America is plagued by cases of gross human rights violations perpetrated by businesses. Although some countries have developed policies called National Action Plans on Business and Human Rights, or NAPs, these mechanisms have been largely ineffective and need serious reform.
Two examples offer stark illustrations of human rights abuses in Latin America. One example is the Cerro Matoso mine in northern Colombia – the fourth largest open-pit ferronickel mine in the world. [1] The mine was built near eight Zenú indigenous communities living within 750 m to 10.1 kilometers of the mine’s perimeter. Colombian Constitutional Court files showed there was insufficient consultation with the communities. The files also contained evidence that blood and urine levels among community members contained nickel levels approximately eighteen times above normal.[2]
A second example is the killing of Berta Caceres, an indigenous woman and human rights defender, in Honduras in 2016. [3] Her killing is linked to her opposition to the construction of a dam project built by Desarrollos Energéticos SA (DESA) in indigenous Lenca territory. As of 2022, seven individuals—most of them former military personnel—have been found guilty as hitmen for her execution. The former DESA’s Executive Director is awaiting trial as the “intellectual author” of her murder [4].
These two examples illustrate the severe human and environmental costs of the lack of limits on businesses in Latin America.
In an attempt to respond issues like the ones described above, governments have introduced NAPs in which they identify priorities, and establish actions and goals related to business and human rights. [5] The United Nations Guiding Principles on Business and Human Rights (UNGPs) provide the three-pillar framework for NAPs. This entails: 1) the state’s duty to protect human rights, 2) businesses’ responsibility to respect human rights, and 3) access to remedies. [6] Since the adoption of the UNGPs in 2011, 26 countries have developed NAPs, three of which are in Latin America. [7]
My review of Latin American NAPs in Colombia, Chile, and Peru reveals several issues. First, NAPs place a disproportionate emphasis on state responsibilities (the first pillar) while ignoring businesses’ responsibilities (the second pillar) and access to remedies for affected communities (the third pillar). Second, NAPs have been based on the erroneous premise that public campaigns, raising awareness, and enhancing dialogue with local communities will reduce corporate abuses and improve laws and policies related to environmental justice. I argue that for NAPs to effectively curb human rights abuses, countries must change their approach. More specifically, they cannot merely focus on raising awareness and improving procedural environment-related human rights; instead, they should take significant steps to strengthen substantive environment-related human rights.
A shift toward substantive environment-related human rights is essential for two reasons. First, this could potentially enable NAPs to improve the living conditions of those who are disproportionally affected by environmental damages caused by corporate activities. Second, focusing on substantive rights could help build trust with affected communities so that they can play a meaningful role in developing environment-related human rights laws and policies.
Figure 1 NAPs around the world8
NAPs in Latin America have overlooked the role of corporations and the judiciary
In 2015, Colombia became the first non-European country to develop a NAP. Chile followed in 2017, and Peru formally adopted its own NAP in 2021. Both Colombia and Chile updated their NAPs in 2020 and 2022, respectively.
Despite the integral nature of the UNGPs’ three pillars, Latin American NAPs overemphasize the role of the executive branch of the government. Furthermore, they largely ignore the role of business in respecting human rights and of the judiciary in improving access to remedies and redress mechanisms for victims. In effect, rather than curtailing human rights abuses, NAPs have become a form of self-indulgent policy-making that takes the path of least resistance.
NAPs generally do not push corporations to adopt meaningful action, such as enacting due diligence policies or establishing voluntary redress mechanisms (as the second pillar would suggest). Yet, stronger NAPs are within reach. Due diligence practices could require companies to meaningfully consult with indigenous communities, such as the Zenú people in Cerro Matoso. NAPs could also create incentives for companies to develop due diligence policies by offering tax incentives, public awards, or public loans to companies who undertake them. Similarly, companies can establish voluntary compensation mechanisms for victims of corporate wrongdoings. For instance, if companies such as DESA had voluntary compensation mechanisms, Berta’s family could have sought compensation without engaging in an arduous legal battle. NAPs should, at the very least, incorporate businesses’ voluntary pledges towards sustainability, which may include respecting the right to life, personal integrity, health, and water access, to name a few commitments.
The lopsided number of provisions concerning the duties of the state demonstrates how business responsibilities and judicial redress mechanisms have been overlooked in NAPs. For instance, the Peruvian NAP has 66 actions concerning the state duty to protect, while the business responsibility pillar only has 21, and the access to remedies pillar only nine. Likewise, the Chilean NAP has a similar ratio, with the access to remedies pillar containing only a fifth of the actions when compared to the state duty pillar. The number of actions within each UNGP pillar demonstrates a bias towards the government’s duty to protect, and overlooks action to be taken by business and the judiciary. When NAPs do address corporations’ environmental impacts, they tend to favor actions such as enhancing dialogue capacities, fostering participation in environmental affairs, and conflict prevention and management. For instance, Chile’s only action vis-à-vis substantive environment-related human rights is the consolidation of gender analysis in environmental impact assessments.
With respect to remedial mechanisms, the Inter-American Court of Human Rights has stressed that in the context of environmental protection, access to justice requires that environmental standards are enforced and that redress mechanisms are in place to protect victims. This means that governments must guarantee that individuals can access remedial mechanisms to contest any provision, decision, act, or omission of public authorities that violate or could violate obligations under environmental or human rights law. [9] However, neither Colombia, Chile, nor Peru substantially address the lack of reliable enforcement and accountability mechanisms for wrongdoers. For instance, the 2015 Colombian NAP only has three actions that substantively deal with access to remedies and environmental justice. One refers to establishing a policy related to conflict resolution through social dialogue. Another has to do with training for community dispute resolution centers, and the last one encompasses the creation of guidelines to align existing or new non-judicial mechanisms with the UNGPs.
Given this gap, the judiciary should participate – or perhaps even develop – their own NAPs to improve access to remedies and redress mechanisms for victims. While the judiciary is independent and not necessarily bound by executive NAPs, there is a need for greater coordination with the executive and legislative branches of government to hold corporations accountable. Under the status quo, states have neglected the challenge of increasing attention towards the third UNGP pillar and engaging the judiciary in business and human rights discussions.
Increased protection of substantive environment-related human rights in NAPs
The Inter-American Court of Human Rights has described environment-related human rights as comprising procedural rights (the right to freedom of expression and association, the right to access to information, and the right to public participation) and substantive rights (the right to life, personal integrity, private life, health, food, water, the right not to be forcibly displaced, property rights, and participation in cultural life). I argue that Latin American NAPs have overlooked substantive environment-related hu
man rights. Instead, they have focused on procedural protections, which have been insufficient to improve the livelihoods of communities affected by environmental damage.
A review of the Colombian, Chilean, and Peruvian NAPs reveals that the mention of substantive environment-related human rights ranges from scarce to non-existent. Environment-related human rights more generally are rarely mentioned. When they are, they refer to procedural environment-related human rights such as enhancing dialogue capacities, fostering participation in environmental affairs, and conflict prevention and management.
The 2015 Colombian NAP, for example, employs vague language when referring to the only four actions related to the environment, which are all procedural rights. [10] Action 2.6 of the 2015 Colombian NAP establishes that the Environment Ministry will “strengthen” the presence of human rights requirements in environmental impact assessments. Likewise, action 7.8 establishes that the Colombian business and human rights working group will “guide” companies to develop an assessment of its risks and impacts on people and the environment derived from its operation without clarifying what this guiding entails.
The Cerro Matoso and Berta Caceres cases illustrate the inadequacies of focusing on procedural environment-related human rights. Local communities and indigenous people already know the problems they face. The Zenú people did not need a stressful legal procedure to know their water and soil had been poisoned. They did not need seminars or leaflets on the UNGPs to demand their rights. They require a government willing to cancel the company licensing agreement due to the lack of free, prior, and informed consultation and the health damages such agreements have caused. Furthermore, there must also be efforts to address the increasing sense of distrust of governments and corporations due to the harm they have permitted or directly caused. For instance, before Berta Caceres’ summary execution, Moisés Durón Sánchez, another local activist opposing the dam project, was killed in May 2015. In that same year, there were also at least six instances where Berta Caceres and her supporters were threatened and intimidated by local police or unknown suspects. [11] The community knew there was risk in opposing DESA since the government protected DESA executives and did nothing to protect the environmentalist leaders. Such actions completely eroded trust with public institutions. As these examples illustrate, the problem is not that people need more spaces for participating – it is that although they participate, their agency is disregarded by public institutions and businesses, and they face governmental reprisals.
A new proposal for NAPs
Focusing on procedural environment-related human rights has limited the effectiveness of NAPs in supporting local communities and indigenous people. Future NAPs should rebalance the focus to actions like ensuring access to justice, respecting indigenous rights to property, stopping the criminalization of human rights defenders, and preventing forced displacements of indigenous or rural communities.
The principle of instrumentality [12] provides guidance on shifting towards substantive environment-related human rights. The principle of instrumentality is based on the ideas of Quintavalla & Hein about how human rights prioritization and hierarchization are necessary to advance such rights. For example, improving potable water access in order to improve personal integrity and the right to health, or improving property rights in order to prevent forcibly displacement and ensuring cultural rights. At least two steps are required to implement the principle of instrumentality. First, governments and other stakeholders need to explicitly articulate which human rights are instrumental to improve other rights and explain the rationale. Second, they need to set well-defined priorities and act accordingly. To understand which human rights are instrumental to others and how to prioritize rights, governments must develop and disclose the methodologies employed to assess inputs during the NAP development process.
Two instruments can help countries assess prioritize in developing NAPs. First, the UNGPs’ principles can assist with assessing inputs in the NAP principles with guidance on how to conduct human rights due diligence, tracking process and prioritize actions (UNGPs 18, 20 and 24) Principle 24 states that “[w]here it is necessary to prioritize actions… business enterprises should first seek to prevent and mitigate those that are most severe or where the delayed response would make them irremediable.”[13] Second, the OECD’s “Due Diligence Guidance for Responsible Business Conduct” Section A.3 assesses severity based on: 1) scale (gravity of the impact e.g., human health or workers’ rights), 2) scope (magnitude of damage e.g., number of people affected), and 3) the irremediable character of the damages (possibility of restitution e.g., whether recovery from health damages is possible).
In conclusion, NAPs must shift their focus from merely procedural to substantive environment-related human rights in order to effectively curb human rights abuses. Doing so increases the possibility of directly improving the living conditions of those who are disproportionally affected by corporate environmental impacts. Moreover, NAPs should increase the onus placed on businesses responsibility to respect human rights, as well as increase the judiciary’s role in improving access to remedies. Such steps are necessary for NAPs to have a meaningful impact in curbing the human rights abuses perpetrated by businesses against indigenous communities in Latin America.
Figure 1 shows the approach underlying NAPs; governments should change the focus towards a new paradigm shown in figure 2.
Illustration 1 Current NAPs paradigm
Illustration 2 Proposed NAP paradigm
1. Rebecca Heinz & Johanna Sydow, “Why environmental due diligence matters in minerals supply chain: the case of Cerro Mataso, Colombia”, (8 February 2021), online: GermanWatch <https://www.germanwatch.org/en/19845>.
2 .Sentencia 733/17, 2017 Corte Constitucional de Colombia c 4.5.1. According to the Institut National de Santé Publique du Québec concentrations above 0,59 mcg/lt are unacceptable, the tests performed in Zenú communities revealed nickel blood levels of 10,53 mcg/lt on average.
3. Front Line Defenders, “Front Line Defenders”, online: Front Line Defenders <https://www.frontlinedefenders.org/en/case/case-history-berta-c%C3%A1ceres>.
4. Ibid.
5. Danish Institute for Human Rights, “National Action Plans on Business and Human Rights”, online: National Action Plans on Business and Human Rights <globalnaps.org>.
6. Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights Implementing the United Nations “Protect, Respect and Remedy” Framework. HR/PUB/11/04 (2011).
7. Working Group on the issue of human rights and transnational corporations and other business enterprises, “State national action plans on Business and Human Rights”, (27 November 2022), online: <https://www.ohchr.org/en/special-procedures/wg-business/national-action-....
8. Developed with information from the Working Group on the issue of human rights and transnational corporations and other business enterprises (https://www.ohchr.org/en/special-procedures/wg-business/national-action-...) and the Danish Institute for Human Rights (https://globalnaps.org/).
9. Inter-American Court of Human Rights, Advisory Opinion OC-23/17 (2017) at paras 234, 237.
10. Plan de Acción de Empresas y Derechos Humanos, 2015 at 13, 20.
11. Precautionary Measure 112-16, 2016 Inter-American Commission on Human Rights at para 3. D.
12. Alberto Quintavalla & Klaus Heine, “Priorities and human rights” (2019) 23:4 The International Journal of Human Rights 679.
13. Office of the High Commissioner for Human Rights, supra note 6 art 24.
Luis Chinchilla is a Honduran attorney with an LLM in Environmental Law from McGill. He was an O’Brien Fellow from September 2020 until February 2022. He has published several academic articles regarding development, as well as business and human rights. Mr. Chinchilla is now the Director of the Human Rights Legal Clinic at the Honduran National Human Rights Institution. His academicinterests are at the intersection of human rights, business, and sustainable development.