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Transnational Corporations' Impunity

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Transnational Corporations' Impunity TRANSNATIONAL CORPORATIONS' IMPUNITY History, What's at Stake Part of a series of the and Initiatives Human Rights Programme of the Europe - Third World Centre (CETIM) Acknowledgement This brochure received support from the Swiss Agency for Development and Cooperation (DDC); the City of Geneva; the municipalities of Bernex, Confignon, Lancy, Meyrin, Onex, Plan- les-Ouates and Misereor. It is part of the CETIM’s Human Rights Program 2014-2016. Moreover, Mr. Olivier Peter et Ms. Haëndila Varela also contributed to the research. Copyright The brochure is available in French, English and Spanish. Its reproduction and/or translation into other languages is authorized and encouraged, provided the original edition is mentioned and the CETIM is informed. Transnational Corporations' Impunity © Europe-Third World Centre (CETIM) ISBN : 978-2-88053-117-9 Geneva, March 2016 Translated from the French by Robert James Parsons Cover design: Régis Golay CETIM 6 rue Amat, 1202 Genève, Suisse Tél. +41 (0)22 731 59 63 Fax +41 (0)22 731 91 52 E-mail : [email protected] Website : www.cetim.ch Already Published in the Series • The Right to Food (2005) • Transnational Corporations and Human Rights (2005) • The Case for a Protocol to the ICESCR! (2005) • The Right to Health (2006) • Internally Displaced Persons (2007) • The Right to Development (2007) • The Right to Housing (2007) • Debt and Human Rights (2007) • War on Terrorism and respect for Human Rights (2007) • The Right to Work (2008) • The Right to Education (2009) • The Right of Peoples to Self-Determination (2010) • The right to non-discrimination (2011) • The right to social security (2012) • Cultural rights (2013) • The Right to Land (2014) The Human Rights Program of the CETIM is dedicated to the defence and promotion of all human rights, a commitment based on the principle that human rights are totally inseparable and indivisible. Within that commitment, however, the CETIM has a particular focus on economic, social and cultural rights and the right to development, still much neglected in our times when not denied outright. Its objective includes combating the impunity accompanying the numerous violations of these rights and helping the communities, social groups and movements victimized by these violations to be heard and to obtain redress. Through this series of publications, the CETIM hopes to provide a better knowledge of the documents (conventions, treaties, declarations etc.) and existing official instruments to all those engaged in the struggle for the advancement of human rights. Selection from among the CETIM's critical reports related to the subject • Transnational Corporations: Major Players in Human Rights Violations (N°10, December 2011) • Mercenaries, Mercenarism and Human Rights (N°8, November 2010) • International, Regional, Subregional and Bilateral Free Trade Agreements (n°7, July 2010) TABLE OF CONTENTS Introduction I. Historical Overview and Current State of Affairs A) Definition of Impunity B) Genesis of the Struggle against Impunity for Human Rights Violations C) States' Obligations II. Reasons for Impunity for TNCs' Human Rights Violations A) Economic Power and Political Influence of TNCs over States B) States' Lack of Political Will C) The Powerlessness of Public Authorities III. Examples of TNCs' Human Rights Violations A) The Probo Koala B) Texaco/Chevron in Ecuadorian Amazon C) Child Labor and Trafficking in Gold between Burkina- Faso/Togo and Switzerland IV. Norms Applicable to TNCs and Mechanisms for Redress A) Regarding the Environment B) Regarding Corruption C) Regarding Organized Crime D) Regarding the Work Place E) Regarding Human Rights V. Initiatives to end TNCs Impunity A) Switzerland B) United Nations Conclusion TRANSNATIONAL CORPORATIONS' IMPUNITY Publication prepared by Melik Özden, Director of the CETIM Part of a series of the Human Rights Programme of the Europe-Third World Centre (CETIM) INTRODUCTION Since its founding in 1970, the CETIM, as a research and publication center, has been been studying the problems posed by transnational corporations (TNCs) in the development of the countries of the Global South, while highlighting the responsibility of the countries of the Global North in the unjust international order. In its book Mal-développement, published in 1975, the CETIM already drew attention to the nefarious role of “multinational business enterprises” in the production of goods (unrelated to the elementary needs of the populations concerned), unfair trade and rising inequality. Since then, it has published numerous works studying the economic and social impact of these business entities active in various sectors.1 Among these publications, a little book published in 1978 demonstrated the trading in influence (political and economic power) of one TNC (Brown-Boveri) as played out in a law suit against it in Brazil pour illicit trade practices, and its part in a world-wide electricity cartel.2 Since the 1990s, we have been witness to the offensive of financial capital and the adoption of a vast panoply of international norms favorable to TNCs (especially multilateral and bilateral agreements on trade and investment) and ignoring human rights. Moreover, the elevation of these entities to the rank of privileged agents of development by the promoters of neoliberal globalization and the wide-scale privatization of public services favoring them have reinforced their position to such a degree that they now control the bulk of production and marketing of goods and services at the global level. In our time, TNCs have a determining influence over most political and economic decisions. They have also become major actors in human rights violations, in particular economic, social and cultural rights. In fact, a large part of the catastrophes with dramatic consequences for humans and the environment have been caused by – or with the crucial complicity of – TNCs.3 From the explosion of an agro-chemical plant in Bhopal (India) to the petroleum pollution in Equatorial Amazon, from child labor on cacao plantations in Africa to the textile factories of Bangladesh, colossal tragedies with multiple human rights violations are imputable to TCNs and to the greed of the majority shareholders and directors. These entities very often escape legal action owing to a lack of political will of some states, but also owing to a lack of legal instruments specifically dealing with them at the international level – whence the de facto impunity that TNCs enjoy. 1 Inter alia, Les médicaments et le tiers monde (1981), Pesticides sans frontières (1982), L'empire Nestlé (1983) and La civilisation du sucre (1985). 2 Multinationales et droits de l'homme (Geneva: CETIM, November 1978). 3 David Baigun, “Responsabilidad penal de las personas jurídicas”, Prevención y sanción de las violaciones a los derechos económicos, sociales y culturales y al derecho al desarrollo: El problema de la impunidad (Madrid & Geneva: American Association of Jurists & CETIM, 1997) pp. 93–95. 2 However, states are responsible for combating impunity for human rights violations, regardless of the hierarchy of these rights (civil, political, economic, social and cultural). Thus, the fight against impunity for human rights violations demands sanctioning those responsible for them and forcing them to repair the damage done. With the exception of certain violations, in particular in the context of armed conflict, the vast majority of human rights violations remain unpunished. This impunity is particularly consequential for offenses committed by private non- state actors such TNCs. The vast majority of victims expect that the harm they have suffered be remedied and that the guilty be subjected to sanctions proportionate to the seriousness of their crimes. Are the victims waiting in vain? Does the current legal framework correspond to their expectations? If not, how can we end the impunity enjoyed by those responsible for these violations and crimes? This publication will explore answers to these questions. It comprises five chapters. The first presents the genesis of the fight against impunity for human rights violations and reviews states' obligations in this area. The second deals with the reasons for TNCs impunity for human rights violations. The third chapter presents several exemplary cases of human rights violations committed by TNCs. The fourth is devoted to an analysis of the current norms in several areas (at the regional and international level) applicable to legal persons, including TNCs. Finally, the fifth chapter presents two initiatives intended to close the legal loopholes at the international level (by the United Nations) and at the national level (by Switzerland). Finally, it is hoped that this publication will make a contribution to the process under way at the United Nations Human Rights Council by analyzing the major points of the discussions and the various proposals that are being formulated there (Chapter V). 3 I. HISTORICAL OVERVIEW AND CURRENT STATE OF AFFAIRS A) Definition of Impunity According to criminologists, both in the past and recently, sentencing can have numerous objectives: expiation and retribution, sustaining social cohesion, reparation, reconciliation, resocialization of the offender etc.4 Regarding human rights violations, more than the sentence's effect on the perpetrator (and possible later reintegration into society), its purpose is dissuasion, hence prevention. Thus, the sanction must be primarily a warning to potential offenders, declaring unequivocally that certain
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