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Curbing corporate abuse and exploitation in Latin America Having often fallen victim to business wrongdoings, Latin America badly needs effective regulation of corporate activity to protect human rights and the environment. Efforts towards this end have thus far fallen short, but some building blocks for a robust corporate accountability regime are already in place in the region. Gabriela Quijano IN January 2022, about 11,900 barrels of crude oil belonging to the company La Pamilla S.A.A. Refinery, a subsidiary of Spain’s Repsol group, spilled onto the beaches of Ventanilla district in Peru. The spill affected a maritime and land area of 18,000 square metres, and resulted in the death of more than 1,850 wild animals. Thousands of local families lost their livelihoods.1 In January 2019, a mining dam owned by Brazilian company Vale collapsed in the municipality of Brumadinho, sending 12 million cubic metres of mining waste down the Ferro-Carvão River. The waste buried the river, irreversibly damaged the vegetation and aquatic life, and killed 272 people.2 Two large-scale infrastructure projects, the Istmo de Tehuantepec Interoceanic Corridor and Tren Maya, are being fiercely pushed by the government and companies in the south of Mexico without consulting local communities despite the serious risks to the environment and human rights they entail.3 In February 2025, three members of a local indigenous organisation that opposes these projects were shot dead.4 Members of the small indigenous community of the Charque in the Bolivian Amazon have been found to have mercury in their bodies. They live by a river which is highly contaminated with the waste material from unregulated mining activities in the area.5 There is no shortage of examples of corporate harm to people and the environment in Latin America. The region’s populations are routinely affected by the irresponsible and often illegal activities of companies operating across various industry sectors. Environmental and human rights defenders, community leaders, and members of grassroots organisations who dare raise their voices to resist these practices become targets of violent attack, and many are killed.6 The need for effective regulation of corporate activity in the region is obvious and pressing. While regulation alone will not provide all the answers, it is a necessary and essential element of any genuine effort to curb corporate harm. The global context The need to control corporate activity to ensure respect for human rights and the environment has long been recognised at the global level. However, the way to achieve this has been contested, particularly between those favouring voluntary approaches and soft-law mechanisms and those advocating for regulation and binding measures. In 2011, the United Nations Human Rights Council adopted the UN Guiding Principles on Business and Human Rights (Guiding Principles), a soft-law instrument that has been recognised and endorsed by most Latin American States. That same year, the Organisation for Economic Co-operation and Development (OECD) updated its Guidelines for Multinational Enterprises (OECD Guidelines), incorporating the second pillar of the Guiding Principles. This pillar addresses the corporate responsibility to respect human rights and to carry out human rights due diligence. The Guiding Principles and OECD Guidelines are not binding and rely on voluntary uptake. As such, they proved ineffective in curbing corporate abuse. Calls for binding measures continued and increased over the years. In June 2014, under the leadership of Ecuador and South Africa, the Human Rights Council passed the historic Resolution 26/9 establishing an Open-Ended Intergovernmental Working Group to elaborate an international legally binding instrument (LBI) on transnational corporations and other business enterprises with respect to human rights. From the beginning, this process has been highly contentious and divisive, with a marked split between Global North States resisting the process and Global South States supporting it. Despite the challenges, the process is ongoing, and participating States are now actively negotiating textual amendments to an advanced draft LBI.7 A few years after the adoption of Resolution 26/9, European countries began to propose and enact their own corporate due diligence laws. In 2017, France passed the Duty of Vigilance law, the first of its kind in the world. The Netherlands, Norway, Switzerland and Germany followed suit. Legislative proposals are also being discussed in Austria, Belgium, Denmark and other European States.8 Several countries outside Europe have also introduced or are in the process of introducing mandatory human rights and environmental due diligence laws. The European Union as a block has passed many due diligence laws, including the Conflict Minerals Regulation, Regulation on Deforestation-Free Products, Batteries Regulation, Forced Labour Regulation, and the recently approved Corporate Sustainability Due Diligence Directive or CSDDD. Although different in focus, scope and methodology, all these laws impose obligations on European companies, or companies operating in the European market, to take due diligence steps along their supply chains to ensure some degree of protection of the environment and human rights. Europe is evidently breaking new ground in this area and setting the course for the rest of the world. However, these laws are not perfect, and they are the result of contested legislative processes and high levels of compromise. Shortfalls include the limited number of companies or industry sectors covered, a narrow human rights focus, limitations on the scope of obligations, and lack of effective enforcement measures or legal consequences for breaches. The fate and integrity of the CSDDD is now also in question after the announcement by the president of the European Commission in November 2024 that its provisions, jointly with those of two other corporate due diligence instruments, would be ‘simplified’ through an omnibus law.9 What role for Latin America? European due diligence laws, and similar laws in other parts of the globe, will have an impact on Latin American countries. Domestic companies which are part of multinational groups or global supply chains will have to take due diligence steps to respond to the demands of European and other companies subject to these laws. This form of regulation reinforces historically asymmetrical power relations and colonial paradigms.10 Its implementation, interpretation and enforcement is fully in the hands of foreign authorities, regulators, companies, lawyers and other actors over which Latin American societies have little control. This is not to say that these laws are not needed. They are, and they need to be stronger. However, Latin American countries (like all other Global South countries) must produce their own corporate accountability frameworks through transparent and participatory processes that put local actors, particularly affected and potentially affected rightsholders, in the driver’s seat. The resulting laws, regulations and enforcement mechanisms should more adequately address existing regulatory gaps, and respond to local realities and needs. This can also help generate an autochthonous community of knowledge and practice, whereby the notion and expectation of corporate respect for human rights and the environment become engrained in public institutions, the legal architecture, as well as cultural norms and values.11 To implement the Guiding Principles, some Latin American countries including Argentina, Chile, Peru and Colombia have adopted National Action Plans on Business and Human Rights (NAPs).12 However, these plans have generally been inadequate because of both the way in which they have been elaborated and the resulting contents. Most have been drafted without sufficient consultation and participation of civil society. As far as their contents are concerned, they do not contemplate legislative or binding measures except for some peripheral provisions, they all omit attention to critical industry sectors,13 and they even fall short of the Guiding Principles.14 The development of Peru’s NAP is considered the most transparent and participatory in the region, yet its implementation record three years from its approval has been appalling.15 As a result of these multiple shortcomings, NAPs have not led to any significant improvement in the protection of human rights and the environment in the context of business activity in the region. For human rights and environmental defenders, the situation has in fact got increasingly worse.16 If this was not obvious before, it is obvious now that Latin America must swiftly move towards regulation and effective enforcement of laws it already has.17 What’s needed? Effective regulation of corporate activity to prevent human rights abuses and environmental damage requires a comprehensive legal reform programme which includes enacting new legislation, amending existing ones and ensuring effective enforcement. It rests not on a single law but on a number of coordinated and coherent normative interventions and the institutional arrangements necessary for their effective enforcement. In a way, NAPs could have been the vehicle for such reforms, but as just stated, these have been utterly disappointing. The legal reform programme also requires harmonisation across all areas of public policy and law, and dismantling existing barriers to effective regulation, such as those erected by bilateral investment treaties. Whether through new laws, the update and amendment of existing ones, and/or the effective enforcement of protections already in place, this programme should contemplate the following key elements: • The establishment of an explicit corporate duty to respect human rights and the environment, and to prevent human rights abuses and environmental damage, which should extend along entire value chains. How this is discharged in practice can be adapted to cater for smaller companies with less resources and impacts. • State monitoring and enforcement of the above duties, through competent and independent regulatory bodies. This should include monitoring and enforcement in all the areas in which the State formally facilitates or enables economic activity such as through public procurement, licensing and permits, privatisation of public services, export credit and other forms of financial support, etc. • Adequate administrative and judicial procedures capable of responding to situations of imminent harm, ordering corrective or remedial action, and investigating and sanctioning allegations of wrongdoing by both State and corporate actors. • Affirmative measures to ensure material equality between companies and rightsholders. • Robust systems of civil, administrative and/or criminal liability of companies that cause or contribute to human rights abuses and/or environmental damage or fail to comply with their duties. • Effective access to justice for victims of corporate abuse, which requires eliminating or reducing existing barriers to justice and putting in place mechanisms that facilitate this access such as class actions, reversal of the burden of proof, broad legal standing, etc.18 • Guarantee and protection of procedural rights of participation, consultation, free, prior and informed consent (FPIC), transparency and access to information, the protection of environmental and human rights defenders, and integration of an intersectional approach in the enactment and implementation of all laws, regulations and measures to discharge both State and corporate duties.19 A comprehensive legal reform programme of the magnitude suggested here needs commitment by many actors over a prolonged period of time. This is not easy and the political context may not be favourable. More discrete and incremental reforms are also worth pursuing and can make a big difference for many people, even within the confines of a specific sector, corporate activity or legal regime. Just changing the rules on civil liability, for example, could make an extraordinary difference if these facilitated parent or lead companies being held liable for abuses in their supply chains. So could enhanced environmental impact assessments, or allocating more resources, power and independence to regulatory bodies. How do we get there? It is down to each State to assess its national legal and institutional frameworks to understand the type of intervention that is needed. In Latin America, many strong laws already exist but they are not applied effectively. An obvious step is therefore to ensure effective implementation. Efforts to this end require an honest and careful examination of the reasons why existing laws and regimes are not being implemented. Corruption, corporate capture of the State, weak regulatory authorities, conflicting laws and ideas of development, a context of generalised impunity, the informal economy, the asymmetry of power between companies and those affected by their activities, violence against social activists, and historical patterns of marginalisation, discrimination and exclusion all play a role. It would be naïve to think that new policies or laws can do away with all these factors, but there are concrete measures that can be taken to eliminate some of them or reduce their impact.20 Other laws will need updating and reforming. Most Latin American economies pursue extractive models of development, which today are being intensified by the energy transition. A large amount of environmental destruction and human rights abuse occurs in the context of mining. Are mining codes and other related laws up to scratch to protect human rights and the environment? What are their gaps, and in what way do they make matters worse? How can they be improved to bring them in line with the State’s duty to respect and protect in the context of business activities? These questions are relevant for all policies and legal regimes dealing with or governing specific areas of corporate activity such as forestry, hydrocarbons, water codes, labour and environmental protection laws, land planning regimes, etc. New laws are also needed. For example, regulatory regimes governing corporate conduct do not tend to apply along entire value chains. At best, they apply to contractors and sub-contractors in certain circumstances. This means that even where regulatory regimes require companies to respect certain human rights, such as the labour rights of their workers, they do not place these same requirements in relation to workers in the value chain. Another important legal gap is due diligence. No Latin American country has mandatory environmental and human rights due diligence laws of the sort now emerging in Europe. Opportunities Latin American countries have a strong normative framework to draw from to put in place robust and effective corporate accountability regimes. The region has two powerful regional human rights bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). In 2019, the IACHR published a landmark report on business and human rights which outlines many of the proposals, measures and principles described in this article.21 The IACtHR has dealt with many corporate human rights abuse cases, and ‘regionalised’ the international business and human rights framework. Landmark cases include Kalina Lokono v. Surinam,22 Empleados de la Fábrica de Fuegos de Santo Antônio de Jesus v. Brazil,23 Buzos Miskitos v. Honduras,24 Vera Rojas v. Chile,25 Olivera Fuentes v. Peru,26 and La Oroya v. Peru.27 Among the most significant findings are the express recognition of the corporate duty to respect human rights, which, in the Olivera Fuentes v. Peru case, the IACtHR extends to the entire value chain. The IACtHR’s jurisprudence is evolving and providing ever more sophisticated and granular input for national legislative efforts on business and human rights. The region can also draw from firmly established principles of the Interamerican Human Rights System that are often unique to the region and highly relevant in the context of business and human rights. Key among these are the pro persona principle, the principle of comprehensive reparation and centrality of the victim, and the principles of material equality, precaution and prevention. Over the years, the IACtHR has provided guidance on the content and meaning of these principles which, if adequately integrated and reflected in legal regimes, can make a significant difference in the lives of rightsholders affected or potentially affected by corporate activities. Another significant feature of the region is the express recognition of the right to a healthy environment in the 1988 Protocol of San Salvador and many national constitutions. The IACtHR’s Advisory Opinion on the Environment and Human Rights has fleshed out this right, and includes other significant standards that are yet to be developed at the global level.28 For example, it makes clear that the environment must be protected in its own right (i.e., regardless of any obvious risk to or impact on human rights). Some national constitutions such as those of Ecuador and Bolivia go further, explicitly recognising the rights of nature. Sixteen countries in the region have now ratified, and are bound to implement, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (known as the Escazú Agreement).29 The Escazú Agreement sets out a number of ‘access rights’ which are extremely important in the context of business activity. These are the right of individuals and communities to participate in decision-making processes concerning the environment and public health, to access environmental information, and to access justice in environmental matters. The agreement is also the only binding instrument in the world that establishes an obligation of protection of human rights defenders and organisations working on environmental issues. National courts have also started to use the Guiding Principles to assess and decide cases, ‘nationalising’ and ‘localising’ the international standards, and providing further input to States in the development of corporate accountability regimes. In the AWÁ indigenous community case, for example, the Colombian Constitutional Court found the corporate defendant liable for breaching the indigenous community’s right to free, prior and informed consent, even though it had a licence to operate. It based its findings on the fact that the company had breached its own due diligence duties as far as the rights of the AWÁ community were concerned.30 Many national constitutions and legal frameworks have progressive approaches and innovative tools to protect human rights which can facilitate or enhance protection in the context of business activity. Almost every country in Latin America has incorporated international human rights law into domestic law, primarily through their constitutions. The horizontal application of human rights obligations to corporate actors is broadly recognised in the region, giving many States a headstart.31 The tool of amparo or tutela is widespread in the region. This is an urgent legal action to protect constitutional and human rights against acts or omissions not only of the State but of private actors too. Many of the mechanisms advocated to improve corporate accountability and access to remedy globally are already in place in some national legal systems. The constitution of Ecuador, for example, establishes the reversal of the burden of proof in cases of environmental damage. Colombia’s transitional justice legislation includes many tools designed to redress power asymmetries and past injustices, such as legal presumptions in favour of victims of the armed conflict. Many civil codes also establish the ‘dynamic burden of proof’, which allows judges to shift the burden of proof to whomever has the greatest ability to produce the relevant evidence. Corporate criminal liability for environmental crimes is recognised in some countries, such as Brazil. In Uruguay, companies can be held criminally liable for endangering the life, health or physical integrity of workers, without a need for actual harm. Instances of strict or absolute liability are also commonplace. Ecuador imposes due diligence and traceability measures along the entire value chain of aquaculture and fishing companies.32 Brazil has a strong class action system which is free for claimants, contemplates the reversal of the burden of proof, and exempts claimants from paying the defendants’ costs if they lose.33 These are all critical measures to ease the financial burden on rightsholders who wish to pursue legal action. Finally, there is a mobilised and increasingly organised civil society in almost every Latin American country that is calling out corporate abuse and demanding regulation. In Peru, a coalition of civil society organisations drafted a proposal for a corporate due diligence law which received initial positive feedback from the Ministry of Justice.34 A Brazilian civil society coalition drafted a framework law on human rights and business35 which supportive members of parliament introduced to the House of Representatives in 2022.36 In response to sustained civil society calls, the Chilean Undersecretary for Human Rights formally announced in June 2023 the drafting of a corporate due diligence bill, and initiated a multistakeholder consultation process.37 In June 2024, a large number of Colombian civil society organisations launched a national campaign for a corporate accountability and access to justice regime.38 This followed an impressive series of technical workshops and debates on different legal paths and regulatory alternatives involving members of government, academia and civil society.39 The involvement, support and expertise of civil society are fundamental for a successful legal reform programme, and these are increasingly in place in the region. Conclusion Latin America is lagging behind Europe and other Global North States when it comes to regulation. As stated earlier, they will still see their domestic companies, or companies operating in their territories, come under increasing pressure to implement due diligence measures in response to the demands of European and other companies subject to due diligence laws in their home States. Latin American countries have a decision to make: they either delegate their regulatory powers to foreign States, or develop their own normative and institutional frameworks based on their national realities and needs. Embarking on legislative processes after European and other States is not necessarily a bad thing and can actually prove advantageous, if local actors learn from and work to address the pitfalls of the European and other legislative processes and avoid gaps and limitations in the resulting laws.
Gabriela Quijano is an independent business and human rights expert working with NGOs and civil society networks on the development of normative frameworks, legal and advocacy strategy, and research on cases of corporate human rights abuse. She worked as a business and human rights specialist at Amnesty International for 14 years where she authored, among other Notes reports, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy. More recently she authored Bhopal: 40 Years of Injustice and Legislative Agenda on Corporate Responsibility for Human Rights Abuses and Environmental Damage in Latin America. She is also the editor of the Developments in the Field section of Cambridge Core’s Business and Human Rights Journal. Notes 1. https://www.fidh.org/IMG/pdf/executive_summary_-_report_on_repsol_oil_spill_en_.pdf 2. https://fian.org/files/files/Brumandinho_Legal_analysis.pdf 3. https://trenmaya.poderlatam.org/#/ 6. https://www.business-humanrights.org/en/from-us/briefings/guardians-at-risk-confronting-corporate-abuse-in-latin-america-and-the-caribbean/; https://es.mongabay.com/2020/10/entrevista-mary-lawlor-derechos-humanos/ 7. https://www.ohchr.org/en/hr-bodies/hrc/wg-trans-corp/igwg-on-tnc 10. https://voelkerrechtsblog.org/centering-europe-and-othering-the-rest/ 13. For example, Peru’s NAP does not address large-scale mining and agribusiness: https://equidad.pe/wp-content/uploads/2024/04/INFORME-OCDE-final.pdf 14.
https://www.fidh.org/IMG/pdf/2__brasil_chile_peru825e.pdf
(in particular, p. 28). Also, https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fmedia.business-humanrights.org%2Fmedia%2Fdocuments%2Ffiles%2Fdocuments%2FPRESENTACION__REGIONAL_LAC_ 15. https://equidad.pe/wp-content/uploads/2024/04/INFORME-PNA-final.pdf 16. https://globalwitness.org/en/campaigns/land-and-environmental-defenders/decade-of-defiance/; https://globalwitness.org/en/campaigns/land-and-environmental-defenders/missing-voices/ 17. See, e.g., https://www.colectivodeabogados.org/rechazamos-nueva-version-del-plan-de-accion-sobre-empresas-y-derechos-humanos/ 18. For an extensive analysis of barriers to remedy, see https://www.amnesty.org/en/documents/POL30/001/2014/en/ and https://icar.ngo/wp-content/uploads/2021/04/The-Third-Pillar-FINAL1.pdf 19. These and many more measures are discussed extensively in FIDH et al., ‘Regional Report: Legislative Agenda on Corporate Responsibility for Human Rights Abuses and Environmental Damage in Latin America’, February 2024, https://www.fidh.org/IMG/pdf/regional_report_-_legislative_agenda_on_corporate_responsibility_for_human_rights_abuses_and_environmental_damage_ in_latin_america.pdf 20. Some ideas are included in FIDH et al., ‘Regional Report: Legislative Agenda on Corporate Responsibility for Human Rights Abuses and Environmental Damage in Latin America’, February 2024 (in particular, pp. 11–13), https://www.fidh.org/IMG/pdf/regional_report_-_legislative_agenda_on_corporate_responsibility_for_human_rights_abuses_and_environmental_damage_ in_latin_america.pdf 21. https://www.oas.org/en/iachr/reports/pdfs/Business_Human_Rights_Inte_American_Standards.pdf 22. https://www.corteidh.or.cr/docs/casos/articulos/seriec_309_esp.pdf 23. https://www.corteidh.or.cr/docs/casos/articulos/seriec_427_esp.pdf 24. https://www.corteidh.or.cr/docs/casos/articulos/seriec_432_esp.pdf 25. http://www.corteidh.or.cr/docs/casos/articulos/seriec_439_esp.pdf 26. http://www.corteidh.or.cr/docs/casos/articulos/seriec_484_esp.pdf 27. https://www.corteidh.or.cr/docs/casos/articulos/seriec_511_esp.pdf 28. https://corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf 29. https://treaties.un.org/doc/Treaties/2018/03/20180312%2003-04%20PM/CTC-XXVII-18.pdf 30.
https://www.corteconstitucional.gov.co/relatoria/2018/SU123-18.htm#:~:text=SU123%2D18%20Corte%20Constitucional%20de%20Colombia&text=La%20Sala%20 31. Dr. Marie-Christine Fuchs, ‘El efecto radiante de los derechos fundamentales y la autonomía del derecho privado: la “sentencia Lüth” y sus efectos’, https://www.kas.de/documents/271408/4627511/Aufsatz+-+Drittwirkung+-+Privatrecht+-+Lueth+-+Redeformat+%28final%29.pdf/b39dbae3-e03d-4f1a-227a-895f29cd6ec0 32.
These and many other examples are contained in the compilation edited
by Humberto Cantú, ‘Experiencias Latinoamericanas sobre reparación
en materia de empresas y derechos humanos’, https://www.kas.de/documents/271408/16552318/Experiencias+Latinoamericanas+sobre+reparaci 34. https://equidad.pe/wp-content/uploads/2023/12/PROYECTO-DE-LEY-Actualizado.pdf 37. https://www.youtube.com/watch?v=4Zba8flbNHc 39. https://www.youtube.com/live/laxoqgPhfWQ *Third World Resurgence No. 362, 2025/1, pp 18-23 |
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Some of the proposals in this article
may appear naïve, but Latin America is a region where the best and
the worst of legal systems and culture often coexist,40
and going for the best that the region can give is not unrealistic.
In fact, some of the most seemingly radical tools and mechanisms to
enhance protection of human rights and the environment in the context
of business activity are already in place in the region, as described
above. Drawing from these precedents, and the region’s strong constitutional
frameworks and human rights tradition, Latin American countries can
develop robust corporate accountability frameworks, given the right
political will. 